"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Wednesday, May 4, 2016

Pakistan: No Justice for Juveniles

On 10th June 2015, Aftab Bahadur was executed after spending 22 years on death row in Lahore's Kot Lakhpat Jail. Bahadur, a Christian man, entered the formidable walls of his death row cell at the age of 15 and left only when he walked to the gallows at the age of 39.

He was working as an assistant to a plumber when he was arrested and tortured by the police into giving a confession for murdering a woman and her 2 sons.

Aftab relayed that the police had asked him for a bribe of PKR 50,000 in exchange for his freedom which he was unable to afford. Thereafter he was convicted and sentenced to death under a law that provided for expedited trials for 'terrorists'.

The only eye-witness to the crime recanted his statement claiming that he had been tortured by the police into implicating Aftab for the murder and that he had never even been present at the time the crime took place.

Writing from his cell a few days before his execution he stated," For many years - since I was just 15 years old - I have been stranded between life and death. It has been a complete limbo, total uncertainty about the future."

As we approach the 1 year anniversary of Aftab Bahadur's execution, the Government of Pakistan has executed over 387 prisoners since the lifting of the moratorium on the death penalty in December 2014.

At least 5 of those executed - including Aftab Bahadur - were juveniles at the time of committing their alleged offences. In a study conducted by the Justice Project Pakistan titled "Juveniles on Death Row" it was discovered that at least 10% of Pakistan's 8000 death row prisoners were juvenile offenders. This puts the number of juveniles facing execution at a startling figure of 800.

Executions of persons who were juveniles at the time of committing the alleged crimes is strictly prohibited under international law through the International Covenant on Civil and Political Rights (ICCPR), that Pakistan became a party to in 2010.

Domestically, the Juvenile Justice System Ordinance (JJSO), a law enacted to provide protections for juvenile offenders in 2000, also bars executions for juvenile and provides for separate courts, jails and trials for juveniles.

A 2001 Presidential Commutation Order extended the benefit of the law to juvenile offender convicted prior to the enactment of the law on the condition of an inquiry into their juvenility.

Despite these protections in place, how is it that juveniles continue to be executed?

Pakistan has one of the lowest birth registrations rates in world. Only 27 % of births in the country are registered with figures going much lower in rural areas. Upon arrest these children are left with no proof of age to prove their juvenility.

Exacerbating the problem, police in Pakistan often record a person's age at the time of their arrest based upon a visual assessment of their physical appearance without any verification. Often times, police record the age of juvenile offenders as above 18 in order to avoid application of protective safeguards provided under the JJSO.

During the course of the trial and appeals, Courts inevitably rely upon the arbitrary assessment provided by the police, despite, production of government-issued documents, including NADRA ID cards by the accused party.

Ansar Iqbal was executed on 29th September 2015 despite the existence of a NADRA issued ID card that showed him to be 15 at the time of committing the offence. The Trial Court chose to rely upon the police assessment of his age of "22/23" years - a decision that was upheld by the High Court and the Supreme Court.

The Courts' failure to rely upon NADRA issued ID cards impairs the integrity of the very national registration system that has been the subject of monumental reform projects and foreign funding in recent years.

A purview of case-law on the determination of juvenility in court proceedings shows that there is virtually no consistent pattern that Courts in Pakistan follow. The courts are free to rely upon birth certificates or school leaving records over medical assessments in one case or medical assessment over any documentary evidence in another.

At the end of the day the Court's decision comes down to the discretion of the individual judge presiding and often times such discretion is inclined towards deeming the accused to be an adult. Not only is such arbitrary practice harmful to the integrity of the criminal justice system, it also violates the fundamental principle of benefit of doubt being granted to the person claiming juvenility.

Additionally, juvenile offenders often fail to raise the plea of juvenility at the stage of investigation and trial as a result of inadequate legal representation - which is usually the case. When such plea is raised at the stage of the appeal there are instances of superior courts failing to consider the supporting evidence by deeming it as not being raised at the 'correct time'.

Such a lack of consistent practice and jurisprudence, leads to severe human rights violations in the investigation and prosecution of juvenile defendants and eventually to executions that are in blatant violation of domestic and international law.

In the state reports submitted under the United Nations International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC) the government of Pakistan has unequivocally stated that no juvenile offenders have been executed in Pakistan.

However, what these reports fail to mention is that the criminal justice is severely lacking in reliable mechanisms to identify juveniles and thereby bring them within the protections that are due to them under law.

There is a dire need to develop consistent age-determination protocols in order to ensure that determination of juvenility by the police and by the courts is conducted in a manner that is fair, just and transparent.

The National Commission on Human Rights, established under the National Commission on Human Rights Act, 2012, is the body with the requisite powers to formulate and implement such protocols. It is essential that the Government of Pakistan provides the necessary cooperation and assistance to the NCHR to undertake such an essential endeavour.

It has been a year since the world lost Aftab Bahadur, and over 23 since he lost his freedom at the age of 15 - an innocent victim of a defunct juvenile justice system. How many more children will meet the same fate?

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I oppose the death penalty in all cases, unconditionally, regardless of the method chosen to kill the condemned prisoner.
The death penalty is inherently cruel and degrading, a cruel punishment that is incompatible with human dignity.
To end the death penalty is to abandon a destructive diversionary and divisive public policy that is not consistent with widely held values.
The death penalty not only runs the risk of irrevocable error, it is also costly to the public purse as well as in social and psychological terms.
The death penalty has not been proved to have a special deterrent effect.
It tends to be applied in a discriminatory way on grounds of race and class.
It denies the possibility of reconciliation and rehabilitation.
It prolongs the suffering of the murder victim's family and extends that suffering to the loved ones of the condemned prisoner.
It diverts resources that could be better used to work against violent crime and assist those affected by it.
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